Tag Archives: Religious Freedom Restoration Act

In the Spring of 1990, when Justice Scalia had only been on the Supreme Court for four years, he wrote an opinion that offended both sides of the political spectrum — Employment Division vs. Smith. For fifty years prior to Smith — in cases dealing with unemployment benefits for Jews and Seventh Day Adventists who would not work on Saturday for religious reasons, with Jehovah Witnesses who objected to their children having to say the pledge of allegiance, with Amish who declined to send their children to school, and with conscientious objections — the Supreme Court had applied a version of compelling interest test to claims that a law infringed on practices of individual religions. In Justice Scalia’s view of the free exercise clause, the constitution only protected the right to believe in a religion, not to actually follow the dictates of a religion in one’s daily life. (Of the other four justices in the majority, only Justice Anthony Kennedy is still on the Supreme Court.) In response, Congress practically unanimously passed the Religious Freedom Restoration Act (RFRA) which, as a matter of statutory law, enacted an exemption from federal law based on religious belief containing an enhanced version of the compelling interest test.

On Wednesday, for the second time since the passage of the Affordable Care Act, employers will be seeking an RFRA exemption from the regulations implementing the Affordable Care Act, specifically the regulations which include coverage for contraceptives as part of the mandatory coverage that large employers must offer to their employees or pay a fine. Unlike the employers in the first case, which were for-profit private employers, the employers in this case are religiously affiliated non-profits (including universities and charities). This case also revolves around the steps that employers must take to claim the exemption recognized in the first case, with the employers claiming that even these steps implicate them in aiding their employees sinful desires.

Over the last two weeks, the United States Supreme Court has granted review in two sets of cases that will bring the abortion issue to the front and center of the opinions likely to be issued in May and June of 2016 and thus into the presidential campaign. How the Supreme Court addresses these issues will determine who sees a need to win the election to protect their rights.

The first set of cases involve the Affordable Care Act and the Religious Freedom Restoration Act. In 2014, the Supreme Court decided to view the coverage requirements of the Affordable Care Act from the perspective of the employer paying for coverage rather than from the employee deciding how to use that coverage. Viewing the scope of coverage from the perspective of the employer, the Supreme Court decided that a mandate to purchase coverage which included benefits for contraceptives would substantially infringe on the religious freedom of corporation which had religious objections to such coverage. (Many of these organizations express the religious belief that certain contraceptives are abortifacients, notwithstanding that from a medical perspective these items are not abortifacients.) Because there were alternative ways to provide contraceptive coverage to employees, the Supreme Court found that the Affordable Care Act violated the Religious Freedom Restoration Act (which applies a compelling interest/narrowly tailored test to federal laws that substantially infringe on religious beliefs).

Since the 2014 decision, the Department of Health and Human Services has created a form to allow employers to opt-out of paying for coverage. The form, however, requires the employer to provide information about that employer’s insurance policy that allows the government to pay the additional premium to make contraceptive coverage for the employees of the company. Several non-profit organizations with religious affiliations object to the form claiming that any cooperation with the government’s provision of such coverage makes the organization an accomplice to the provision of contraceptive coverage, thereby violating the organization’s religious beliefs.Continue Reading...